Chapter 9 MODIFICATION OF CONTRACTUAL CHILD SUPPORT

• Jurisdiction: New York

Chapter Nine

Modification of Contractual Child Support

I. Upward Modification of Contractual Child Support; Burden of Proof

"Courts of this State enjoy only limited authority to disturb the terms of a separation agreement."²³⁸⁶ A court may upwardly modify decrees or orders of child support deriving from a separation agreement incorporated but not merged therein upon a showing that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred resulting in a concomitant need²³⁸⁷ or that the needs of the children are not being adequately met,²³⁸⁸ in which case the needs of the children must take precedence over the terms of the agreement.²³⁸⁹ In Zeller v. Zeller,²³⁹⁰ the Appellate Division held that the modification to the separation agreement and the separation agreement itself constituted one document.

II. Upward Modification in Face of a Surviving Agreement

N.Y. Domestic Relations Law § 236B(9)(b) (DRL), a creature of legislative fiat, addresses, in part, the issue of child support modification. The section does not exist in isolation, also implicating canons of statutory construction. The first sentence in DRL § 236B(9)(b) states:

Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship (emphasis added).

It is, therefore, noteworthy that the second sentence of DRL § 236B(9)(b) omits the words "child support" (the significance of this omission is discussed in greater depth below). The uniqueness of the second sentence, constitutional concerns notwithstanding,²³⁹¹ is that a judicial modification of surviving contractual spousal maintenance simultaneously rewrites the terms of the underlying agreement, thereby denying the payee recovery of the difference in a plenary proceeding grounded on contractual enforcement of the independent surviving agreement:

Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines.

In furtherance of not permitting the adequate needs of children to go unattended, the judiciary crafted a standard for an upward modification of contractual child support set forth in an unmerged or surviving agreement.²³⁹² The criteria for an upward modification of contractual child support emanate from the landmark Court of Appeals decisions Boden v. Boden²³⁹³ and Brescia v. Fitts.²³⁹⁴ The question of whether a downward modification of contractual child support is permissible immediately follows this discussion.

A. Boden v. Boden

In Boden,²³⁹⁵ the mother petitioned Family Court for child support in excess of the amount provided in the separation agreement: $15,170.99 a year from $3,675 per year. Pursuant to the terms of the separation agreement, the father was to pay $150 a month in child support. The agreement further called upon the father to pay for his daughter's college education, which would be secured by a life insurance endowment policy in the principal sum of $7,500 to be written on his life.

When the child reached college age, she decided, with her mother's counseling, to attend Yale University, whereupon the mother initiated the proceeding, on behalf of her daughter, seeking to have the amount of child support being paid by the father increased. It was undisputed that the father had always complied with the support provisions of the agreement, including the insurance endowment policy, from which the daughter began receiving payments upon the commencement of her college education.

The mother sought to increase the child support. At the time of the hearing the mother was earning $45,000 a year, and the father, who had remarried, had an income of approximately $43,000 per year. Family Court denied the application for an upward modification. A divided Appellate Division bench reversed that determination and awarded her a $100-a-month increase beyond the amount called for in the agreement. The Court of Appeals reversed the Appellate Division.

The Court of Appeals held that "[t]he terms, like any other contract clauses, are binding on the parties to the agreement.²³⁹⁶ . . . [However], an action may be commenced . . . for child support despite the existence of the agreement."²³⁹⁷ In its consideration a court is not limited by the terms of the agreement but rather must assure that the child is receiving adequate support, cautioning, nevertheless, that the stipulated allocation of financial responsibility not be freely disregarded. Boden noted two presumptions:

(a) it is to be assumed that the parties anticipated the future needs of the child and adequately provided for them and the terms of the agreement should not be freely disregarded, and

(b) it is also to be presumed that in the negotiation of the terms of the agreement the parties arrived at what they felt was a fair and equitable division of the financial burden to be assumed in the rearing of the child. Included in these obligations is the financial responsibility of providing the child with adequate and reasonable educational opportunities. ²³⁹⁸

Boden emphasized that upward modifications of contractual child support, "[a]bsent a showing of an unanticipated and unreasonable change in circumstances, [and] . . . [u]nless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into."²³⁹⁹

Essentially, where child-related contingencies can be anticipated and the parents did not provide for them in the agreement, upward modification will be denied once it is perceived that the petition is a veiled effort to renegotiate and reallocate the financial responsibilities.

The Court of Appeals reversed the Appellate Division because (1) the agreement fixed an amount which the parties deemed adequate as and for child support, (2) the agreement manifested an understanding that the child might pursue a college education, and (3) there was a specific provision to fund and cover those expenses. Critically, the Court of Appeals added, "[T]here has been no showing of an unforeseen change in circumstances, or that the agreement was not fair and equitable when entered into."²⁴⁰⁰

B. Proposition in Boden

Boden stands for the proposition that where parents can anticipate certain events in their children's lives and did not provide for them in the agreement, an application for an upward modification will be dismissed where it is perceived that the nature of the application is strictly to renegotiate and reallocate the terms of the agreement.

III. Brescia v. Fitts

A. Upward Modifications of Child Support

Five years after Boden, the Court of Appeals, in Brescia v. Fitts,²⁴⁰¹ revisited the question of upward modifications of child support in the face of a surviving agreement. In Brescia, the parties entered into a separation agreement which provided that custody would remain with the petitioner mother, and for a declining sum of maintenance and support for the petitioner and the children. Pursuant to the agreement, the respondent's support obligation was reduced upon the mother's remarriage. Shortly thereafter, the mother brought a proceeding for an upward modification of child support. The mother alleged a change in circumstances based on the children's needs attributable to their increasing ages, greater needs, the inadequacy of the amounts provided in the decree, and the increase in the father's financial circumstances.

During the hearing the mother presented evidence regarding her present financial status, the children's expenses and the respondent's current financial situation.²⁴⁰² Both parties also introduced evidence concerning the circumstances surrounding the negotiation and execution of their separation agreement on the issue of whether it was fair and equitable when made.

Family Court increased the father's total child support obligation to $5,200 a year for each child based on their needs, based on its conclusion that the original agreement was not fair and equitable when entered into, as it did not provide for a fair allocation of continuing responsibility, nor did it reflect a sense of providing for the future needs of the children.

The Appellate Division, citing Boden, reversed, finding that the mother's generalized claim of the children's increased needs and her showing of a significant increase in the father's income did not warrant an increase in child support.

In its reversal of the Appellate Division, the Court of Appeals began by underscoring that Family Court's power regarding child support derives from N.Y. Family Court Act § 461 (FCA);²⁴⁰³ that the parents' duty to support their child is not diminished by the existence of, inter alia, a separation agreement or judgment of divorce; and in the absence of an order of Supreme Court directing support, Family Court may make an order of support. The Court continued with a review and analysis of its much-misconstrued and inconsistently applied ruling in Boden regarding the requisite "not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred, resulting in a concomitant need."²⁴⁰⁴ Brescia fine-tuned Boden by limiting it to its facts: (1) "contrary to...